Henry Wrape Company v. Barrentine

• Decision Date: 07 April 1919
• Docket Number: 168
• Citation: 211 S.W. 366,138 Ark. 267
• Parties: HENRY WRAPE COMPANY v. BARRENTINE
• Court: Arkansas Supreme Court

211 S.W. 366

138 Ark. 267

HENRY WRAPE COMPANY v. BARRENTINE

No. 168

Supreme Court of Arkansas

April 7, 1919

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Affirmed.

Brundidge & Neelly, for appellant.

The judgment should be reversed and the cause dismissed, because:

1. The court erred in refusing to give the jury the peremptory instruction requested, as the evidence shows that appellee assumed the risk of injury at the time he entered the employment. He was of age and fully realized and appreciated the danger arising from the practice of throwing stones and missiles about the mill plant. 3 Labatt Master & S. (2 ed.) p. 3170, § 1182; 62 Ark. L. R. 695; 96 Ark. 387; 95 Id. 560; 105 Id. 533; 90 Id. 411; 77 Id. 367-458; 82 Id. 11; 161 Mass. 153; 68 Ark. 319; 56 Id. 237. See also 77 Ark. 375; 99 Id. 377; 104 Id. 489; 18 R. C. L. 683 § 172; 126 F. 501; 81 N.E. 529; 206 S.W. 655.

2. The court erred in giving instruction No. 1 requested by plaintiff (1) because it assumed that plaintiff was injured upon the premises of defendant and while in its control and while said fellow servant was in the discharge of his duties and (2) because it failed to tell the jury that if plaintiff assumed the risk and same was obvious to him and he continued to work, he could not recover. Cases supra.

3. The court erred in its refusal to give instructions Nos. 8, 9, 10 and 11, requested by appellant. 105 Ark. 487.

4. The court erred in its refusal to give No. 14, requested by defendant. The question of assumption of risk was not submitted to the jury in any other instruction for defendant. Cases supra.

5. It was error to admit parol testimony to establish the incorporation of defendant. Kirby's Dig., § 845; 107 Ark. 58.

J. N. Rachels, for appellee.

1. There is but one question raised here, that of "assumed risk." The law of this case was settled on the former appeals, except assumed risk. 105 Ark. 485; 120 Id. 206, and 129 Id. 111.

2. The question of assumed risk was not raised in any of these appeals or trials and the question has no place here. 116 Ark. 196. Act 69, Acts 1907, abolishes the doctrine of assumed risk as a defense. 90 Ark. 543; 92 Id. 92. See 206 S.W. 677; 32 L. R. A. (N. S.) 1028.

3. There should be a limitation on the right to amend answers. 60 Ark. 531; 85 Id. 43; 120 Id. 601. See also as to the "assumption of risk," 9 C. C. A. 130; 23 U.S. App. 62; 69 F. 553; 29 C. C. A. 374; 85 F. 608; 3 N.E. 627; 26 Id. 210; 2 Id. 24; 25 Id. 373; 156 Ill.App. 602; Labatt on M. & S. (2 ed.), § 894; 14 L. R. A. 737; 126 Ark. 452; 116 N.E. 324. "Assumed risk" has no place in this case, and every other question has been settled by the former appeals.

MCCULLOCH, C. J. HUMPHREYS, J., concurs. SMITH, J., dissents.

OPINION

MCCULLOCH, C. J.

Appellee instituted this action against appellant to recover damages on account of personal injuries. He alleged, in substance, that while in the service of appellant company upon its premises and in the discharge of his duty he was struck in the eye by a rock thrown by one of the company's employees while such employee was upon the premises of the company, and under its control, and that the company was guilty of negligence in failing to exercise care to protect him from danger.

The answer denied the material allegations of the complaint, and set up affirmatively as a defense assumption of risk.

This is the fifth appeal in this case. See 105 Ark. 485, 113 Ark. 196, 120 Ark. 206, 129 Ark. 111.

The defense of assumed risk was raised for the first time at the trial which resulted in the judgment for appellee, from which is the present appeal.

Appellee testified that when he went to ask employment of appellant he saw and knew that the dangerous practice of throwing stones was going on. After he accepted employment he saw it every day during the twenty months he worked for the appellant company; it was going on practically all the time. He had frequently complained to the management about it and they had declined to correct the evil and never promised appellee that they would correct it. Nevertheless, he remained in the employment of the appellant for twenty months with full knowledge that he was liable to get hurt. He gave as his reason for remaining in the service, with such knowledge, that he was out of a job and was looking for work.

After appellee had so testified, appellant asked permission to amend its answer setting up the defense of assumed risk, and over the objection of appellee the request was granted.

At the conclusion of the testimony, appellant presented certain prayers for instructions on the issue of negligence, defining the duties and obligations of the master to the servant under the facts which the testimony tended to prove. Some of these the court granted and some it refused. We deem it unnecessary to set forth these prayers for instructions.

Appellant also requested instruction on the subject of assumed risk, which reads as follows:

"The jury are instructed that, under the law, when the plaintiff entered the service of the defendant company and continued in said employment, he assumed all the ordinary and usual hazards incident to such employment, and he also assumed the risk from the manner in which he knowingly sees and observes that the business is being operated and carried on; and if you find, from the testimony, that prior to the injury plaintiff had been in the employ of the defendant company for a period of twenty months, or thereabouts, during which time he saw and knew of the dangerous habits of some of the employees in throwing missiles and stones, and that he appreciated this danger and continued in the service, then under the law he assumed the risk of injury therefrom, if any, and you will find for the defendant."

Appellant also asked that the jury be instructed to return a verdict in its favor, which the court refused.

The appellant duly excepted to these rulings.

On the first appeal in this case, we said: "The master owes to his servants, while on his premises to perform services, and also to strangers who rightfully come upon the premises, the duty of exercising ordinary care to free the premises from known dangers, all dangers of which the master is informed. This, of course, included dangers arising from negligent or wilful acts of the servants. Though it is not essential to the master's liability that the negligent servant should be acting at the time within the scope of his authority, yet it is essential that the master should have control of him, or the opportunity to control his actions, before the liability attaches on account of his conduct. If the servant in committing the negligent act is not proceeding within the line of his duty, and is not at the time within the control of the master, then the latter is not liable." 105 Ark. 485. This was also reiterated in the opinions of this court on the subsequent appeals.

The rule as thus announced, on the issue as to the alleged negligence of the appellant, is the law of the case on the present appeal, for the facts on that issue were substantially the same on the last trial as they were on the former trials. The charge of the court on the issue of negligence conforms to the law as thus announced on former appeals, and we find no error in the rulings of the court in giving and refusing prayers for instructions on that issue.

Appellant contends that the court erred in its rulings in refusing its prayer for peremptory instruction, for the reason that the undisputed evidence shows that appellee assumed the risk, but if mistaken in this, appellant contends that assumed risk under the evidence was at least an issue which should have gone to the jury under the above prayer for instruction, and, therefore, its prayer on that subject, set out above, should have been granted.

The facts upon which appellant predicates its defense of assumed risk are substantially as follows:

Appellee had been working for appellant eighteen or twenty months when one of the employees of appellant threw a rock, which struck appellee in the eye, causing him to lose the same. It had been the practice of the employees to throw rocks and other missiles on the mill yard ever since appellee had been there. Appellee had not engaged in this practice. He asked the managers of the company to stop the throwing, telling them "that somebody was liable to get hurt." Appellee says, "He told me to go ahead and attend to my damn business and he would attend to his." They did not stop it. It was the general practice from the time appellee began work until he was hurt. It was going on when appellee went there. He saw it the day he went down and asked for employment, and saw it before he ever hired there; knew it was going on for twenty months before he was injured. There was never a day during the twenty months that some of the people, the boys especially, were not out throwing rocks, staves and chunks. "The boys would go out there and get to throwing, leaping and running." It was going on practically all the time. Appellee was asked why he wanted to work at a dangerous place like that, and answered that he was out of a job and looking for work. Appellee told Mr. Wrape just a day or two before he got hurt "that he ought to put a stop to the boys throwing, that somebody was liable to get hurt," and received the reply above set forth.

Counsel for appellee contend that there can be no question of assumption of risk in an instance of this kind, and he bases his argument on the doctrine stated in St. Louis, Iron Mountain & Southern Railway Company v. Ledford, 90 Ark. 543, 119 S.W. 1123. But in that case the liability of the master depended upon the act of negligence of a fellow servant of the injured person,...